As most criminal practitioners are well aware, the current members of the Supreme Court have little love for the Fourth Amendment. The protections against illegal searches and seizures have been largely chipped away, and the exclusionary rule may soon be on its way out the door as well. Surprisingly, however, the Supreme Court has reinvigorated some of the protections for criminal defendants. The past decade has seen the reinvigoration of the right to a jury trial and jury findings (think Apprendi and Booker), and there seems to be growing recognition for the need to provide effective assistance of counsel under the Sixth Amendment (think Padilla). In two cases issued yesterday, Lafler v. Cooper and Missouri v. Frye, the court has ensured that the right to counsel does not extend solely to the effective assistance of counsel at trial but extends to the plea bargaining process as well. Or, as Justice Scalia puts it in his dissent in Lafler, the Court has created a "whole new field of constitutionalized criminal procedure: plea-bargaining law."
The holdings in Lafler and Frye are quite simple, though the remedy for constitutional violations is by no means clear or predictable. In Frye, the Supreme Court held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. The Court notes that counsel has a duty to communicate formal offers to the accused, and any failure to do so may constitute prejudice. In order to establish prejudice under Lafler, the defendant must demonstrate a reasonable probability both that they would have accepted the more favorable offer and that the plea would have been entered without the prosecution revoking the offer or the court refusing to accept it.
Similarly, in Lafler the Court was confronted with a situation in which the defendant rejected a plea offer because of counsel's erroneous legal advice. Unlike Frye, however, the defendant proceeded to trial and was convicted. The Court found that the fact that Lafler had a jury trial free from constitutional infirmity did nothing to cure the constitutional violation. The Court held that where a defendant shows ineffective assistance of counsel has caused the rejection of a plea leading to a more severe sentence at trial, the remedy must neutralize the taint of a constitutional violation. In other words, the court must try to put the defendant in the same position had the constitutional violation not occurred.
While the holdings in Frye and Lafler are rather straighforward, it is less clear how defendants and courts will implement those holdings. In particular, the Court's framework set forth in Frye is hardly the model of clarity. The Court requires defendants to (1) show a reasonable probability that they would have accepted the earlier plea, and (2) that if the prosecution had the discretion to cancel the plea or the court had the discretion to reject it, there is a reasonable probability neither entity would have done so. The majority itself provides little guidance to trial courts about how best to implement the framework set out in these decisions, acknowledging in Lafler that "today's decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case." While the Court is providing direction to the trial court in Lafler in the preceeding sentence, it can be assumed that the Supreme Court's vague guidance will have to suffice for all other trial courts dealing with these issues.
Tangents and Observations:
(1) Left unaddressed by the Frye opinion (because it was not relevant to the decision) is the fact that the defendant received three years in prison for driving with a revoked license. Does driving on a revoked license warrant a three year prison term? Does anyone even think about the cost to taxpayers of incarcerating someone for three years? I know he had three prior convictions for the same offense, but one has to wonder if there's a better way to allocate resources. Hell, there should probably be an Eighth Amendment claim the next time some judge gives prison for driving on a revoked license.
(2) The Court again recognizes that our system is a system of pleas--not jury trials. The statistics cited by the Court are staggering--97% of federal convictions and 94% of state convictions are the result of pleas. Extending the protections of the Constitution to the plea bargaining process is simply a way to meaningfully protect the rights of defendants--defendants who will, in all likelihood, plead guilty.
(3) If practitioners had any doubt, these decisions make clear that counsel is ethically (and constitutionally) obligated to convey plea offers to their clients.
(4) As occasionally happens, Justice Scalia's dissent provides defense attorneys with fertile grounds for expanding the holdings in these cases. By raising questions about the implications of the majority's decisions, Scalia provides a potential road map for other issues related to the plea bargaining process. As Scalia queries,
"Is it constitutional, for example, for the prosecution to withdraw a plea offer that has already been accepted? Or to withdraw an offer before the defense has had adequate time to consider and accept it? Or to make no plea offer at all, even though its case is weak--thereby excluding the defendant from 'the criminal justice system'?"
Some of his questions are no doubt rhetorical, but there may be a basis in the future to raise issues similar to the ones posed by Scalia's questions.